Board Investigations and the Curse of the Mummy’s Tomb – Part I

On this day in 1923, the tomb of King Tut was opened. It created a worldwide stir that has in many ways continued down into the 21st century. Clearly, the boy ruler influenced Steve Martin , (How’d you get so funky?, Funky Tut). Moreover, when the King Tut exhibit first toured the US in the 1970s, it sold out everywhere that it went. And, of course, there was the Curse of the Mummy’s Tomb, which led to some great Universal classic horror pictures. This curse may have killed the dig’s benefactor, Lord Carnarvon who died just months after entering the tomb in November 1923, but the archeologist who discovered King Tut, Howard Carter, seemingly outlived the curse, dying at the age of 64 on the eve of World War II.

I thought about the techniques employed by these two archeologists in the Curse of the Mummy’s Tomb when I read an article in the Corporate Board magazine, entitled “Successful Board Investigations” by David Bayless and Tammy Albarrán, partners in the law firm of Covington & Burling LLP. Why the Curse of the Mummy’s Tomb? It is because if a Board of Directors does not get an investigation which it handles right, the consequences can be quite severe. Over the next two posts I will explore the article by Bayless and Albarrán. Today in Part I, I will review the author’s five key objectives, which they believe a board must pursue to ensure a successful investigation. Tomorrow. in Part II, I will review the authors seven considerations to facilitate a successful board investigation.

The authors recognize that the vast majority of investigations will be handled or directed by in-house counsel. However, if and when such an investigation is needed, it is critical that it be handled with great care and skill. The authors note that “While this task is fraught with peril, there are a number of steps a board can take to ensure that the investigation accomplishes the board’s goals, which will enable it to make informed decisions, and withstands scrutiny by third parties” because it is this third party scrutiny, in the form of regulators, government officials, judges/arbitrators or plaintiffs’ counsel in shareholder actions, who will be reviewing any investigation commissioned by a Board of Directors. The authors believe that there are five key goals that any investigation led by a Board of Directors must meet. They are:

Thoroughness - The authors believe that one of the key, and most critical, questions that any regulator might pose is just how thorough is an investigation; to test whether they can rely on the facts discovered without having to repeat the investigation themselves. Regulators tend to be skeptical of investigations where limits are placed (expressly or otherwise) on the investigators, in terms of what is investigated, or how the investigation is conducted. This question can be an initial deal-killer particularly if the regulator involved views an investigation insufficiently thorough, its credibility is undermined. And, of course, it can lead to the dreaded ‘Where else’ question.

Objectivity - Here the authors write that any “investigation must follow the facts wherever they lead, regardless of the consequences. This includes how the findings may impact senior management or other company employees. An investigation seen as lacking objectivity will be viewed by outsiders as inadequate or deficient.” I would add that in addition to the objectivity requirement in the investigation, the same must be had with the investigators themselves. If a company uses its regular outside counsel, it may be viewed with some askance, particularly if the client is a high volume client of the law firm involved, either in dollar amounts or in number of matters handled by the firm.

Accuracy - As in any part of a best practices anti-corruption compliance program, the three most important things are Document, Document and Document. This means that the factual findings of an investigation must be well supported. For if the developed facts are not well supported, the authors believe that the investigation is “open to collateral attack by skeptical prosecutors and regulators. If that happens, the time and money spent on the internal investigation will have been wasted, because the government will end up conducting its own investigation of the same issues.” This is never good and your company may well lose what little credibility and good will that it may have engendered by self-reporting or self-investigating.

Timeliness - Certainly in the world of Foreign Corrupt Practices Act (FCPA) enforcement, an internal investigation should be done quickly. This has become even more necessary with the tight deadlines set under the Dodd-Frank Act Whistleblower provisions. But there are other considerations for a public company such as an impending Securities and Exchange Commission (SEC) quarterly or annual report that may need to be deferred absent as a timely resolution of the matter. Lastly, the Department of Justice (DOJ) or SEC may view delaying an investigation as simply a part of document spoliation. So timeliness is crucial.

Credibility - One of the realities of any FCPA investigation is that a Board of Directors led investigation is reviewed after the fact by not only skeptical third parties but also sometimes years after the initial events and investigation. So not only is there the opportunity for Monday-Morning Quarterbacking but quite a bit of post event analysis. So the authors believe that any Board of Directors led investigation “must be (and must be perceived as) credible as to what was done, how it was done, and who did it. Otherwise, the board’s work will have been for naught.”

To help manage these five issues the authors have seven tangible considerations they suggest that a Board of Directors follow to help make an investigation successful. Tomorrow I will review and scrutinize these seven considerations.

Source: FPCA Compliance and Ethics Blog by Thomas Fox.

Thomas Fox has practiced law in Houston for 30 years. He is now an Independent Consultant, assisting companies with anti-corruption and anti-bribery compliance and international transaction issues. He was most recently the General Counsel at Drilling Controls, Inc., a worldwide oilfield manufacturing and service company. He was previously division counsel with Halliburton Energy Services, Inc. where he supported Halliburton’s software division and its downhole division. Tom is the author of the award winning FCPA Compliance and Ethics Blog and the international best-selling book “Lessons Learned on Compliance and Ethics”. His second book, “Best Practices Under the FCPA and Bribery Act” was released in April, 2013. He recently released his first eBook, “GSK In China: A Game Changer in Compliance”. He writes and lectures across the globe on anti-corruption and anti-bribery compliance programs.

President Proclaims Civilian Secretariat Commencement

The remaining sections of the Civilian Secretariat for Police Service Act of 2011 that did not come into effect in December 2011 will now come into force on 1 April 2014.

The act seeks to give effect to section 208 of the Constitution by establishing a civilian secretariat tasked with monitoring, assessing and evaluating the performance of the South African Police Service (SAPS).

The minister of police will be responsible for the new secretariat.

Provincial police secretariats will be expected to align their planning and operations with the new national secretariat.

The civilian secretariat will be expected to:

• Exercise civilian oversight over the SAPS
• Advise the minister on developing and implementing policies
• Provide administrative support to the minister
• Communicate with stakeholders
• Form a partnership with stakeholders to improve service delivery by SAPS
• Improve relations between itself and the independent police investigative directorate

In terms of the sections that are to now come into effect, section 4(2) refers to the establishing of the secretariat as a national department while 4(3) deals with the secretary as the accounting officer of the secretariat.

Section 14 focuses on the responsibilities of the secretary in terms of finances and accountability.

The proclamation notice was published in Government Gazette 37151.

Prior to the notice, the presidency had indicated in a statement at the beginning of December that the remaining sections were to commence on 1 April.

Source: SABINET

ANC at 102: when the revolution eats its own children

There are few people who can talk about the state of the ANC without sighing and shaking their heads. The transition from a liberation movement to a political party in government has not been kind – the organisation appears to be on a mission of self-destruction with lure of power and wealth tattering its fibre, and factionalism and patronage constantly diminishing its stature. The ANC has been able to reach the grand age of 102 because of the strength of its leadership and its popularity throughout its lifespan. But now it is difficult to hold up the ANC in 2014 against the organisation with a progression of heroic leaders which took power in 1994. Most bizarre is the way it has turned on itself. By RANJENI MUNUSAMY.

Lieutenant General Sean Tshabalala died of a broken heart. His body was found in his locked office at the police headquarters in Pretoria on Christmas Eve. Tributes at his memorial service and funeral tell the story of a once proud Umkhonto we Sizwe (MK) soldier and one of the first line of VIP protectors when the ANC returned from exile, withering in a state of depression after being marginalised by the police management.

A furore erupted after Tshabalala’s funeral where former national police commissioner Bheki Cele revealed a list of 18 names of former MK combatants serving or formerly in the South African Police Service who were allegedly on a target list, presumably of the current national commissioner Riah Phiyega and her political bosses. Tshabalala’s name allegedly topped the list. His friends and former colleagues had earlier told of Tshabalala’s heartbreak at being shifted sideways from Protection and Security Services division of the police to the information technology division and later to a non-job at the police inspectorate.

Police Minister Nathi Mthethwa acted swiftly to meet with some of the people on the list and dismiss the claims as rubbish. Phiyega denied knowledge of the list. However, the perception exists that experienced ANC and MK members were being steadily hounded out of the security services since President Jacob Zuma won power at the ANC’s Polokwane conference.

There has been a deluge of early retirements and resignations from the Department of State Security, the military and the SAPS in recent years, most of which involved people who served in MK or ANC intelligence structures during the liberation struggle. Some of these people went into exile in their teenage years, some were involved in dangerous intelligence missions at great personal cost, some were trained in the camps under the ANC’s most iconic leaders.

Their departure from the security services has been a curious phenomenon. Zuma, formerly head of intelligence in the ANC, has always seen security and intelligence as high priority. But after the recall of Thabo Mbeki, it would seem that paranoia set in and people perceived to be loyal to the former president were systematically weeded out, irrespective of their skills, service to their country with distinction or role in the liberation struggle.

Cele is well aware of the purge because he was instrumental in implementing it while he was national commissioner. In one case, he called a high-ranking officer who was on a mission abroad immediately back to the country and informed him he was being transferred to another job. It did not take long for the officer to resign from the police service. Cele was also the one who transferred Tshabalala out of the Protection and Security Services division.

Tshabalala, unlike most of his comrades, stuck it out in the police despite being sidelined – a decision which probably eventually cost him his life. Shortly before his death, Tshabalala had received a letter transferring him to the Northern Cape province (viewed as the Siberia of deployments), and this is possibly the reason his depression became too much to bear.

Tshabalala is just one of many of people whose lives have been destroyed by the organisation they dedicated their lives to. Others have been able to move on with their lives but their disillusionment with the ANC is profound. For many of them, the ANC was not just a political organisation but a way of life, a reason for being. To see the organisation self-destruct is worse than a family feud or divorce because they had chosen the ANC over their families and their own safety when they joined the struggle.

There are various explanations for the purge. The first is that ANC people in the security services would refuse to use state institutions to fight power battles in the party. There is always the risk that loyalty to the ANC would outweigh loyalty to the individual in power, which could lead to instructions being ignored, undermined or disclosed. The theory goes that this is why Zuma and Mthethwa saw use in Richard Mdluli – as a person who worked for the apartheid era police, he has no affiliation to the ANC and is loyal only to those who pay his salary.

The second theory is that the security ministers felt threatened by the seniority, knowledge and experience of the commanders serving under them. In terms of ANC hierarchy, many of the officials were senior to the current batch of ministers and this was a source of tension, particularly when there were differences of opinion on operational issues. But while there might have been underlying resentment, it would be strange if Zuma allowed the security services to be depleted of loyal and experienced officials on the basis of his ministers' inferiority complexes.

The third theory is more complex. A former senior member of the security services says the success of South Africa’s transition was partly due to the fact that security of the country was in the hands of the “doves”.

“This ensured that national security was based on human security. Now the focus is on state security. For the first time, security is now in the hands of the ‘hawks’, just like during the Apartheid era when the hawks saw a red (communists) under every bed. So we have come full circle with the hawks again in charge,” he said.

He said the current crop of hawks are fixated on external threats to the country, such as from foreign governments, imperialist forces and lobby groups, and they trade on conspiracy theories. “The real threats to the country are unemployment, inequality and poverty, and our failure to deliver. But anyone who puts forward that view is hounded out, marginalised or made redundant.

“They do not want to hear about our own failures; they prefer nonsensical stories about plots against the president, like what was in the Mdluli report. The plot is the failure of delivery. That is the biggest threat to national security,” the retired member said.

The theory is consistent with how the state and ANC views the personal security of the president and the state as interchangeable – as exemplified by the handling of the issue of the security upgrades at Zuma’s Nkandla estate. But the retired security official says people often overlook how the Constitution defines the governing principles around national security: “National security must reflect the resolve of South Africans, as individuals and as a nation, to live as equals, to live in peace and harmony, to be free from fear and want and to seek a better life”.

The Constitution says nothing about the President and his Cabinet receiving special protection in their homes and cars as a principle of national security but dictates that ordinary people should be “free from fear”. It would appear that the organisation which drafted this Constitution has these days lost sight of these principles.

To the ANC at 102, it would seem, people, even their most experienced and dedicated comrades, are expendable. It has become a pattern that factional battles need to be fought till one group is hounded out and the organisation belongs only to the victors. From branch to national level, battles are fought for dominance of leadership positions, and those who lose are treated as pariahs and purged from positions in the state.

At the ANC national conferences, voting for the top six positions and the national executive committee takes place according to slates, dependent only according to loyalty to those who control the faction. As a result, the organisation is controlled by the winning faction and those outside the faction are marginalised, irrespective of their seniority, credentials or what they have to offer the party or the country.

Both Mbeki and Zuma appear to believe that the best way to protect their presidencies is to surround themselves with loyalists who tell them what they want to hear and fight off dissent on their behalf. It is this very tendency which builds resentment in the ANC and leads bad decision-making.

As the ANC celebrates its 102nd anniversary, it is also in the process of compiling its lists of representatives to serve in Parliament and the provincial legislatures. The list process is also likely to be defined by factional politics, with loyalists able to get higher on the lists and stand a better chance of becoming a member of Parliament. Those who refrain from factional battles or who campaigned against Zuma’s second term at the ANC’s Mangaung conference are less likely to be elected.

But there are also a number of people who are declining nomination because they cannot in good conscience agree to serve the ANC in its current state. “It is a bloody nightmare for us,” said one high-ranking member who has declined nomination.

He said if the party was serious about its future and that of the country, they would ask the president and other ANC leaders steeped in scandal to step aside. “But in the NEC, few can stand up and impose their integrity. The rest will be found wanting themselves,” he said.

Others, however, believe that they should remain in the fold and the ANC will self correct at its next conference in 2017. But what is the likelihood of it and how much damage would have been done by then? With the organisation a shadow of its former self now, what will it look like with four years still to go under the current leadership?

Despite the many problems in the ANC, there are only few people who are able to speak up and confront the issues besetting the organisation. The leadership seems to believe that the organisation is resilient and can withstand the scandals and strife. And those who do speak out are treated as disgruntled elements that should be disregarded. ANC and South African Communist Party veteran Ronnie Kasrils wrote in The Guardian last year: “The ANC's soul needs to be restored; its traditional values and culture of service reinstated. The pact with the devil needs to be broken”.

The ANC simply ignored him.

And so, Africa’s oldest liberation movement turns 102 on Wednesday. It is a momentous occasion for the organisation with a proud history and iconic leaders to still be going strong and enjoying the support of the majority of South Africans. While the current leaders mark the occasion with celebratory rallies, doubling as campaign events, many people will be looking on from the outside, mourning for days gone by when the ANC was a home for all.

Perhaps it is normal for any political organisation to find itself unable to keep its soul once it gets touched by the spoils of uninterrupted power. It has happened many times before, and it will happen many times in the future. What is surprising, though, is how history always fails to teach the ones at the top. At 102, the ANC is drifting into the darkness, increasingly disconnected from the lives and reality of those they are sworn to protect: the masses that continue to exist in the tough reality and fearing a hopeless future. DM

Source: Daily Maverick

Organised Crime and Money Laundering

Nkandla report: The real reasons why ministers took on Thuli

The fight between Public Protector Thuli Madonsela and the security cluster is about much more than her provisional report into state expenditure at President Jacob Zuma’s private Nkandla homestead.

It signals the start of a new war between openness and accountability, on the one hand, and secrecy, cloaked in the garb of security, on the other. And it is clear that the Protection of State Information Bill – the so-called secrecy Bill – passed for the third time in the National Assembly this week, opens up a dangerous new front in that war.

Last Friday, Police Minister Nathi Mthethwa approached the Pretoria high court to interdict Madonsela from releasing the draft report, purportedly in a quest for more time.

In effect, though, he sought to block the release until the security cluster ministers were satisfied with the way she had accommodated their concerns about allegedly sensitive information.

What emerges starkly in the court papers is that the ministers believe any document that draws on classified information must itself be classified. In his founding affidavit, Mthethwa in effect threatened criminal sanction should Madonsela release an uncensored draft report to other “affected, implicated and interested parties” to obtain their responses.

Principle of secrecy

He warned: “Release of the provisional report to third parties … without prior authorisation of [the ministers] … is unlawful and carries … a criminal penalty.”

Mthethwa’s affidavit attached an earlier letter to Madonsela from Public Works Minister Thulas Nxesi, also on behalf of the defence, police and state security ministers.

Nxesi made the point explicitly: “As neither I, nor the ministers involved, have given the necessary permission to declassify the documentation relied upon by you in your provisional report, we deem it necessary to inform you that to release your provisional report without our authorisation would, in effect, result in … a contravention of section 4 of the National Key Points Act, 102 of 1980, and section 4 of the Protection of Information Act, 84 of 1982.”

Nowhere did Mthethwa refer to any specific contents of the draft report to justify the claim that the president’s security was at risk.

What really seems to be at stake is the principle of secrecy – and who gets to pronounce on it.

In her stinging reply, Madonsela said the ministers did not cite a “single fact” to illustrate how the president’s safety would be compromised by the disclosure of the draft report.

In his second affidavit, tabled on Thursday, Mthethwa sidestepped that challenge, claiming it was irrelevant to the request for more time.

In their reply, the ministers abandoned their interdict, citing the fact that Madonsela, in asking for the matter to be postponed until November 15, had in effect given them the extra time they asked for.

But it would be a mistake to see this as a final climb-down instead of a tactical retreat.

Further litigation to come?

In his second affidavit, Mthethwa foreshadows potential further ­litigation, stating: “It will be argued at an appropriate time, when the need arises, that the [public protector], not being an expert on matters of security, cannot be an arbiter on whether or not there exists a security breach from the contents of the provisional report … Should the respondent arrogate to herself that power to determine whether or not there is a breach of security arising from the contents of her provisional report, I am advised that she will in law be acting ultra vires her powers and the law.”

In short, ministers, not Madonsela, must decide whether the report breaches security.

Mthethwa adds: “The classified and top-secret information extracted by [the public protector] in her provisional report … is governed by the minimum information security standards, and it is those classified and top-secret documents and/or extracts that require the minister to authorise its further publication.”

Clearly, no authorisation has been granted. If Madonsela does not excise what they ask her to, there appears to be a real chance the security cluster will return to court.

The state security department itself accepts that apartheid-era laws the ministers rely on are probably unconstitutional, making the ­ministers’ attempt to exert their authority over Madonsela something of a reach.

That will change when the secrecy Bill is signed into law – which the president could do any day now.

Top secret

The new Act specifies that the state security minister will make regulations governing how chapter nine institutions – including the public protector and the auditor general – will be allowed to access and use classified information.

The push for a security curtain was echoed in the report of the Joint Standing Committee of Intelligence (JSCI), which released its Nkandla report on Thursday.

After the outcry over the expenditure – about R210-million – in November 2012, the public works minister appointed a government task team to investigate. Its report – classified as top secret – was delivered to Nxesi in January.

In June, the report was referred to the JSCI, which usually carries out oversight of the intelligence services.

An opinion from the parliamentary legal adviser recommended the JSCI restrict itself to matters to do with security oversight, redact sensitive information and then refer the report to the National Assembly.

The JSCI ignored this advice, endorsed the top-secret classification and even recommended that any new information uncovered should be referred back to the JSCI for consideration behind closed doors.

It notes: “Matters relating to the allocation of tenders … should be referred to the office of the auditor general for a full investigation … However, the JSCI believes that because of the classification aspects of the subject matter, the auditor general should report on this investigation to the JSCI.”

Of even more concern is how the JSCI parrots the ministers’ line in their interaction with Madonsela.

A sign of things to come

In a veiled reference to her, the JSCI notes: “Entities which have investigative powers … should not be inappropriately motivated … to launch into an investigation on a matter which has already been assigned to another entity. It is therefore recommended that the executive give urgent attention to this matter … so that unnecessary parallel investigations can be avoided.”

This was precisely the argument the ministers used to try to discourage Madonsela’s Nkandla investigation.

In a letter to Madonsela in April, the state attorney referred to her meeting with the ministers and noted: “The purpose … was to discuss with you our concerns regarding parallel investigations ...”

He said a draft proclamation for the Special Investigating Unit to take up the matter had already been sent to the president and a request for an Nkandla audit had been addressed to the auditor general. “Our clients, therefore, propose … that you hold your investigation in abeyance until the processes embarked upon have been completed.”

Madonsela said in her affidavit this week that the auditor general’s audit had not materialised, nor had the Special Investigating Unit yet been authorised to investigate.

Source: Mail & Guardian

What Land and Housing Rights Reveal About a Country’s Commitment to Open Society

Homeowners in Moscow’s Rechnik district likely did not expect to wake up to bulldozers on the morning of January 21, 2010. Thrown out of their homes by armed police, families could only watch as their houses were demolished. Under the direction of Moscow’s then-mayor, Yuri Luzhkov, famous—or infamous—for his embrace of fast-paced, high-priced development, municipal authorities decided to invalidate land permits issued during the Soviet era and reject residents’ de facto titles to what has since become valuable land and to the houses they had built on it. Had they built illegally? What is the state’s responsibility to citizens in this process? What, if any, were the underlying interests at stake in this demonstration of force? With similar situations played out all over the globe, state actions to take away people’s land or expel them from their homes tell us volumes about a government’s commitment to transparency, democracy, and other elements of good governance; they lay bare the true human rights record of a place.


The Open Society Foundations’ Human Rights Data Initiative, a joint project of the Human Rights and Governance Program and the Information Program, has begun a year-long study of housing and property expropriations. The study will track how the issue is connected to a range of internationally recognized human rights, and explore how human rights and accountability organizations approach the problem of the abuse of states’ claim to eminent domain. Though states are empowered to use eminent domain for the public good, abuse of this authority is widespread. What we’ve found is that violations of the “positive right” to housing are only one part of the issue. The process of state infringement on land ownership illuminates a host of other problems, including the state’s failure to uphold the rule of law, provide equal protection to all citizens, tackle corruption, and engage in economic development that is respectful of ethnic minorities and the urban poor. Invariably we also find citizens shut out of decisions regarding their surroundings, the shape of their city, and preservation of its cultural heritage. Land and housing policy is a revelator that tells us about the reality and depth of commitment to open society values in a given country.

In a broad survey of the work of the Open Society Foundations, we’ve seen that the threat to where they live is many people’s first encounter with the potential harm of predatory state interests. Human rights and transparency organizations report incidences with alarming frequency: Azeri families living in central Baku find themselves stripped of their property and forced from their homes to make way for a glittering stadium for the Eurovision Song Contest. In Equatorial Guinea, where a small ruling clique of families reaps huge profits while over 60 percent survive on less than $1 per day, citizens were evicted with inadequate or nonexistent compensation in the name of an “urban renewal” and public utility development, that has given birth to hotels, offices and luxury housing that few will ever access. Similar dubious state claims to promoting “public good” were raised in the case of Roma settlements on municipal land in Bulgaria. Tolerated by the state for decades, communities found themselves threatened with eviction when the land was privatized without offer of alternative housing. That case was finally settled at the European Court of Human Rights in a decision that cited state responsibility to assess the necessity of the action, as well as the effects of interference an eviction will have on the right to private and family life as deciding factors against the government of Bulgaria.  Activists in Brazil have documented the effect of evictions on an estimated thirty thousand people in the run-up to the “mega events” of the World Cup 2014 and 2016 Olympic Games in Rio—mass evictions carried out without sufficient compensation, forewarning, or community consultation. In many of these cases, when citizens raised their voices through the channels of protest open to them, they were answered by the state with resistance, violence, and restriction of their liberties.

If forcible removal is one end of the spectrum of violations, at the other, state bureaucratic policies can be less blatant but just as insidious. Though bureaucratic reform toward openness in land policy can be a good thing, when states institute open records and land-ownership reform to counteract corruption in legal titling of land, the process can be turned on its head. Take India, for example, where individuals began taking advantage of records opened in an effort to help the rural poor take out loans or apply for government benefits.  Because they had better technical skills and access to information, wealthier residents could create what open data expert Michael Gurstein called “unequal contests around land titles,” exploiting mistakes and gaps to their own advantage. In Georgia, the buying and selling of land has been drastically simplified in the past several years, including through the establishment of electronic land records—a major step forward in limiting corruption—but curious exceptions to the speed and ease of that process have appeared when such slowdowns are in the state interest, and when dozens of citizens at a time “donate” their land in a valuable tourist zone to the state.

Land and housing rights excite communities in ways that many other rights issues do not. Housing procedures are often the most widely felt of the harms done by a chaotic or captured state, where high-level corrupt political and economic exchange between government and a small number of firms is pervasive. The combination of abusive practice and non-transparent procedures can create citizen outrage, and introduce them to their fundamental rights and the challenges and exhilaration of citizen action. As acts of state policy, evictions and eminent domain can affect large numbers of citizens from different classes and social strata, and all of them experience the lack of rule of law, and the need for information and the right to free expression to pull the levers of citizen governance.

The issue also marries disparate communities and inspires conversations about history and preservation, rights and due process, economic growth and the tangibles and intangibles of livability, livelihood, and public good. Expropriation of land and housing filters through many of the key issues of the Open Society Foundations—from corruption and poor governance, to lack of access to information, use and abuse of force, lack of independence of the judiciary, and intolerance of dissent. Open Society Foundations’ own work to mitigate the impacts of the national foreclosure crisis on low-income communities and communities of color in the U.S. highlights how the lack of transparent and accountable financial markets can lead to widespread displacement and wealth-stripping among vulnerable populations.

State policies on housing and the use of eminent domain not only energize individuals, but can also have a galvanizing effect on civil society organizations. NGOs focused on a key population are often motivated by housing and property dilemmas to develop full-context arguments on human rights, development, transparency, and citizen access to decision-making. In doing so, these organizations find new partners and new channels for activism, policy work and redress of abusive practices. At the same time, they face new challenges. Given the large amounts of money at stake, documenting procurement contracts and development deals can be very dangerous and difficult.

And finally, the expansion of access to information and technology enrich the potential for development to be conducted in ways that reflect open society values. As instruments of development, international financial institutions and technology can affect the direction of state policy on questions of housing and land. International financial institutions already exert a good deal of influence over the direction of development projects that they sponsor. Because of their leverage, IFI can either be a springboard for state abuse or a catalyst for a more transparent and equitable approach, negotiating rights-respecting plans and ensuring an open process. Technology can be used to increase efficiency and fairness by bringing game-changing data to light, or obscure processes and privilege those who already have access to knowledge and broadband.

As the Human Rights Data Initiative examines this theme, we are focusing on three key questions:

1.  What is the shape of the use and abuse of eminent domain and other tools of the state with respect to property? What is it used for, whom does it affect, and how?
2. In projects where citizens, organizations, or other interests have successfully countered a demonstrably bad decision in this space, what has been the deciding factor: did access to more data tip the scales? Did evocative documentary photographs motivate new actors? Was it sharp statistical analysis, or targeted campaigning?
3. How can campaigners leverage this issue to engage with citizens on open information and governance, and effect better policymaking around development?

The World Urban Forum 6, which will be held in Naples this September, will focus attention on how rapid urbanization threatens to exacerbate global inequalities and explore what institutions will be necessary to build cities that are both prosperous and inclusive.  The Forum will provide an ideal opportunity to explore some of the issues of housing stability and human rights raised here. While profound economic and population changes sweep the globe, states exert the tools of governance to promote development and economic growth. Civil and political liberties can get set aside in the push toward development, but a human rights approach does not need to be in fundamental contradiction with progress and modernization.

How can we do this better? We need more data: as the Lincoln Institute of Land Policy points out, governments do not produce systematic information on the use of eminent domain, and legal research does not tell us about other dimensions of this government practice. We need to help transparency and human rights organizations to work together to ensure that people’s civil and political rights are protected during the process of urban development, with particular attention to the rights essential to expression of dissent and participation in decision making processes. And we need to know from international lenders and experts what the key elements of development planning are that can preserve people’s human rights, and insist on their inclusion in negotiated agreements regarding sponsored economic development projects. It will be essential for lenders to share that information with civil society groups and bring such groups into the process as allies. States must seek to make honest transactions between public need, livelihood, and individual rights, and this transaction should be observed for the opportunity it represents to scratch the surface of commitments to civil and political liberties.

Source: Open Society Foundations

Anger grows over invite to Tony Blair

A group of Durban-based organisations want to arrest Tony Blair on charges of war crimes when he arrives in South Africa later this month. Blair will be in the country to participate in the Discovery Invest Leadership Summit.

"Various Muslim organisations are in talks about possible actions that will be carried out should Tony Blair visit South Africa," said Mustafa Darsot, a member of the South African Muslim Network executive committee. "This includes protest marches outside the summit venue, possible sit-ins and legal action against Mr Blair. We have also asked various legal professionals to look at the feasibility of having a warrant of arrest issued against him."

Blair will join several big names, including Nobel Peace laureate Archbishop Desmond Tutu, chess master Garry Kasparov and Finance Minister Pravin Gordhan at the annual event, which will take place in Sandton on August 30.

Darsot said the network and several other organisations had written to Discovery Group founder and chief executive officer Adrian Gore urging him to withdraw the invitation to Blair. They did not believe he was "fit to lecture on leadership" because of his key role in the 2003 invasion of Iraq.

"Mr Blair is complicit in the murder of thousands of people in Iraq and should be tried for war crimes," Darsot said. "He violated the trust and responsibility of his office and it was his cosy and illegitimate relationship with the [Rupert] Murdoch press that prevented much of the truth about his role in the invasion of Iraq and murder of its citizens from being revealed in the press."

Offence

But Iona Maclean, head of Discovery Life and Discovery Invest Marketing, said the invitation to Blair would not be withdrawn.

"The Discovery Invest Leadership Summit brings together a range of leaders to debate the challenges that face the world's economy, business, government and society," she said. "The event is not intended to reflect a political view or cause offence. Discovery Invest selected the speakers based on their experience as leaders from various spheres of society and we will not be withdrawing our invitation to any of the speakers."

Patrick Bond, director of the Centre for Civil Society at the University of KwaZulu-Natal, said there was no question that Blair could be prosecuted for a "crime of aggression".

"The website arrestblair.org spells out Blair's role in recent mass murder from the Middle East to Central Asia," he said (See "Make a citizen's arrest and be rewarded").

"Since Pretoria politicians justifiably complain that the International Criminal Court mainly prosecutes African tyrants, leaving European and American war criminals to travel the world gathering huge speaking fees, some action by Foreign Minister Maite Nkoane-Mashabane would reduce the talk left, walk right accusation against South Africa. She might simply follow the recent lead of Malawian President Joyce Banda, who warned Sudanese President Omar al-Bashir to stay away from Lilongwe on threat of arrest."

Bond said if Nkoane-Masha­bane did not intervene, South Afri­cans who viewed Blair as a war criminal could attempt a citizen's arrest.

Disproportionate obsession

A spokesperson for the department of international relations and co-operation refused to respond to Bond's comments.

Meanwhile, at a press briefing held earlier this week, Deputy Minister of International Relations Ebrahim Ebrahim again discouraged South Africans from visiting Israel.

His comments were condemned by the South African Jewish Board of Deputies, which said in a joint statement with the office of the chief rabbi and the South African Zionist Federation that they were "indicative of a highly discriminatory and disproportionate obsession with the Jewish state".

But a group of prominent Jews, including Shereen Usdin, Alan Horwitz and Robert Freeman, distanced themselves from the statement and added that, "in fact, we strongly support the progressive position our government has taken".

"Trips organised by the Israeli lobby present a biased picture of Israel and seek to whitewash Israeli human rights abuses.

"As the South African government has already proposed, visits should only be undertaken if they are to genuinely pursue the peace process," they said in a statement.

Make a citizen's arrest and be rewarded

South Africans who attempt a "­citizen's arrest" of Tony Blair could claim about R300 00 from the website arrestblair.org as a reward for their efforts. According to the site, donations it receives from supporters (the total is nearly £10 000) are used to pay bounties for attempts to arrest the former British prime minister.

Anyone attempting an arrest is entitled to one-quarter of the money collected at the time of his or her application. South Africans would certainly qualify, said the founder of the website, Guardian columnist George Monbiot.

"The same rules apply everywhere on Earth. Anyone who abides by the conditions we lay out on the website is entitled to one-quarter of the money in the kitty at the time of the claim." So what exactly are the conditions?

According to the rules listed on the site, the attempt should be non-violent and cause no injury to Blair and those around him. It should also be reported in at least one mainstream outlet as a way of ensuring that it has political consequences and the claimant, who needs to apply for the award within 28 days of the attempt, must provide proof that he or she is the subject of the report.

Arrest attempt

If several people are involved in a single arrest attempt, or if more than one person makes an attempt at the same event, one-quarter of the total pot is to be shared between them. Performing a citizen's arrest seems simple enough.

The method recommended by the site is "to calmly approach Mr Blair and in a gentle fashion to lay a hand on his shoulder or elbow, in such a way that he cannot have any cause to complain of being hurt or trapped by you, and announce loudly: 'Mr Blair, this is a citizen's arrest for a crime against peace, namely your decision to launch an unprovoked war against Iraq.

I am inviting you to accompany me to a police station to answer the charge.'" To date, three individuals have received awards from the site for trying to arrest Blair. In September 2010, Kate O' Sullivan was sent a cheque for £3129.02.

At a book signing in Ireland, she told Blair she was arresting him. More recently, Tom Grundy, a Briton living in Hong Kong, walked up to Blair during an address at a local university and said: "Mr Blair, under Hong Kong's Power 101 law, the law which allows for citizen's arrest here, I'll be arresting you for crimes against peace." It is not clear yet whether Grundy will receive arrestblair.org's fourth award.

Source: Mail & Guardian

In South Africa the Rule of Law Does not Apply to the Political Elite

There is little disagreement that corruption is a serious problem facing South Africa. Unfortunately, various indicators suggest that the problem is getting worse. The annual Transparency Corruptions Perceptions Index is a useful measure of whether corruption is getting better or worse in 182 countries worldwide. Ten points indicate the absence of perceptions of corruption, while 0 means that the country is entirely corrupt. On this scale, in 2011 New Zealand scored closest to ten with a score of 9,5, while Somalia was rated as the most corrupt country in the world with a score of 1. The 2011 index reveals that South Africa registered its lowest score to date of 4,1 points when compared with our highest rating of 5,1 in 2007. Worryingly, we have dropped from 54th place in 2010 to 64th place in 2012 on the world rankings. The surveys from Afrobarometer – a public opinion survey focusing on Africa – have also shown that South Africans are increasingly concerned about corruption. While in 2008, 15% of adults thought that corruption was ‘an important national issue’, by 2011 this had increased to 29%.

In October 2011, the head of the Special Investigating Unit (SIU), Willie Hofmeyr, told the National Assembly Portfolio Committee on Justice and Constitutional Development that corruption involving government procurement was costing South Africa as much as R30 billion each year. To place this in perspective, this amount of money could increase the annual budget of the Department of Basic Education by 20%, the Department of Health by 25% or the entire criminal justice system by 30%. In short, if taxpayers’ money were not being stolen by, or with the connivance of, corrupt government officials and politicians, all South Africans could benefit from substantially more schools, hospitals and police stations staffed with better-paid doctors, teachers and police officers.

It is then fortunate that, officially at least, the government has identified corruption as a serious challenge and has set itself the objective of reducing corruption so as to ‘boost investor trust and willingness to invest in the country’. Towards this end it set the goal of prosecuting and convicting a hundred individuals that are suspected to have corruptly acquired assets worth more than R5 million by 2014. To achieve this the government has established the Anti-Corruption Task Team to coordinate the activities of various investigation agencies and the National Prosecution Authority (NPA). Although Hofmeyr pointed out earlier this year that at least 26 individuals meeting the government’s targeted profile are before the courts on corruption charges, its overall target is too ambitious given the handful of successful convictions achieved in the past few years.

The question is, why is the problem of corruption so large and damaging to South Africa if there is an official government policy to reduce it? The answer lies in examining the extent to which there is political will to take appropriate action against the most politically powerful and connected people.

When an ordinary citizen is alleged to have committed a crime such as corruption, the South African Police Service (SAPS) will identify that person as a suspect in a criminal matter. The SAPS will then use its legally provided investigative powers and resources to gather any evidence that will allow the suspect to be criminally charged and brought before a court. The suspect is given various rights and is entitled to having lawyers test the evidence so as to ensure that it is indeed correct and that the he/she is not being falsely accused. If the evidence is found wanting suspects will be acquitted and if not, may find themselves convicted and sent to prison.

It is the unfortunate reality that politically connected individuals are being protected from criminal justice processes. When Police Commissioner General Bheki Cele was found by the Public Protector to have engaged in conduct that was ‘improper, unlawful and amounted to maladministration’, he was not subjected to a criminal investigation. Rather, his friend and the person who appointed him to his post, President Jacob Zuma, appointed a board of inquiry to look into allegations of corruption and wrongdoing. However, unlike a police investigation, the board of inquiry could not subpoena witnesses, or access cellphone records and bank statements, as was the case in the investigation against convicted ex-SAPS Commissioner Jackie Selebi. The inquiry had no investigative powers and therefore could only consider evidence provided to it by willing parties. The recently leaked inquiry report therefore raised more questions than answers and apparently recommended that a full criminal investigation be undertaken into the matter. If Zuma implements this recommendation, it will be the first example of a senior politically connected person at a national level being subject to such an investigation under his administration.

Disturbing allegations emerged as a result of various investigations by the Directorate for Priority Crimes Investigations Unit (also known as the Hawks), that the Head of SAPS Crime Intelligence, Lieutenant-General Richard Mdluli, and his close colleagues were implicated in a range of crimes including murder, rape, kidnapping, intimidation and wide-scale corruption. It is alleged that the Minister of Police halted all investigations into Mdluli and ordered that he be reinstated. Mdluli was irregularly appointed to his position after a cabinet ministers’ meeting two months after Zuma was sworn in as the President of South Africa. It has been alleged that this was because of Mdluli’s willingness to use his position to support Zuma to stay in power. Indeed, Mdluli has written letters to Zuma that state as much.

That the current acting SAPS National Commissioner Nhlanhla Sibusiso Mkhwanazi has recently re-suspended Mdluli is seen by many as a bold move to reject political interference in police matters, a move that could cost him his position. Current criminal investigations into Mdluli by the Hawks appear to have been taken despite political interference.

More recently we have read of allegations that the Minister of Police, Nathi Mthethwa, irregularly benefited from the Secret Service Account of the SAPS Crime Intelligence Division when R195 581.40 was used for renovations to his private residence. If this allegation is true, it may amount to unlawful conduct as the funds in this account consist of taxpayers’ money to be used for crime intelligence work only. The Minister of Police has denied that he benefited from the Secret Service Account and stated that he had asked the Auditor-General (AG) to investigate. As is the case with the board of inquiry into Cele, the AG does not undertake its work with the intention of gathering evidence to support or refute allegations of misconduct or criminality. Therefore the Minister is safe in the knowledge that he will not automatically be facing any criminal sanction from the AG’s investigation into the allegations against him. All the AG will be able to find with regards to wrongdoing is that money was misspent and recommend that further investigations be undertaken – a recommendation that could be ignored by the Minister, to whom the AG will report on this matter.

If politically connected individuals cannot be held accountable for criminal activity through the criminal justice system, there is little incentive for them to stop engaging in corruption and the problem will continue to worsen. Unfortunately, this appears to be happening as there is no political will to subject politically connected people at the highest levels of government to the criminal justice system when there are allegations of wrongdoing. So no matter how many ordinary people the government throws in jail, our country will continue to suffer the negative effects of corruption of state resources being used to benefit a handful of individuals.

Source: ISS

Posted by: amaBhungane Posted on: April 20, 2012 Posted in: Perspective Comments: 7 Comments Views: 3078 Eish and goodbye: the pains of information-seeking

Sorry, in advance, to the politically correct who support sex work and to dentists who love their jobs. But in my subjective mind, while there are many torturous jobs, these two spring to mind first: selling sex to strangers and drilling into someone’s mouth. Right up there, however, has to be an aspect of my job as advocacy co-ordinator: that of “information officer”, which I performed since January 2011 at the M&G Centre for Investigative Journalism (amaBhungane).

This performance entailed making requests for information – without much success – and filling out official forms to request information from public and private bodies in terms of the Promotion of Access to Information Act (Paia) of 2000. This Act is what the government and supporters of the secrecy Bill have been waving in our faces. In other words, the secrecy Bill balances out Paia. So, if something is classified in terms of the secrecy Bill, no problem, you can always apply, using Paia, to request the very same info get declassified. Do you sniff cumbersome and burdensome?

Alas, the present reality of Paia is already a hoot, without the secrecy Bill being passed.

In the execution of my tasks as information officer, I have ground my teeth in frustration and have had three migraines in one year, as opposed to my usual, only one. I blame Paia. It takes a very special person to do Paia requests. Someone who is patient, gentle and kind, and who doesn’t mind phoning the same person weekly, with the same conversation: “Hello, how are you, where is the information you promised to send me last week?” Then that person says to you: “Gosh, didn’t you get it?” And you go: “Gosh, no, when did you send it?” But you know the cheque is not in the post. In fact, it hasn’t gotten anywhere close to being posted.

An inordinate amount of time is spent trying to get information. I have had about a 10% success rate. To get what you need, you have to fill out a form, but there is a process and challenges to face before you send the form.

First, many people in public and private bodies seem not to know of Paia. I don’t know if they are pretending blissful ignorance. Second, they give you a name and you fill out the form and with some satisfaction and press the send button. Third, you then get a call to say that was not the correct person to deal with. So you start the process all over again. Fourth, you email, fax, and post to ensure that at least through one method the request falls onto the right lap. And then telephone to confirm receipt of the request.

To begin to describe the frustration you feel when you hear that the request was not received is beyond the power of words to describe. I grind my teeth, get a tense neck and worry about a migraine coming on, and I start again. Fax. Email. Post. Telephone. “How are you? When can I expect…?”

Our kind receptionist, Thuli, has witnessed my trying to send the same fax over and over again. She has often offered to help fax for me. Sometimes, she has discovered that I was given the wrong number.

Back to the process. It goes like this: an investigator needs information. You have to find out who the right person is to send the information to. You often get it wrong, or sometimes the wrong name is given to you, maybe in ignorance, maybe deliberately. There is no way of knowing for sure. Then, you fill out the forms. You follow up. You send again. The request is refused. You lodge an internal appeal. But you get the run-around first, to find out who you lodge the internal appeal with. When all fails you go to court. We haven’t done that in the past year.

So what is the point I’m trying to make? Paia is slow and cumbersome. The turnaround time for receiving an acknowledgement of a request is long. The turnaround time for receiving the information is, mostly, never. Imagine what will happen if the secrecy Bill is passed in its current form – the “new” deadline for the Bill is May 17.

The M&G‘s amaBhungane investigators have heard me on the other end of the telephone, pretending to be patient and polite, and have been quite sympathetic. They have also heard me lose my temper, after I’ve put the phone down, and curse about the obstreperous nature of the other side or of having quit the smoking habit maybe a bit prematurely.

These requests for information are not just about exercising our constitutional rights to information. Investigations need information, full stop. Journalists cannot do their jobs without authentic information, as in documentation, be these from deeds offices, court records, or local government or private sector vaults.

I leave to take up a research position at Wits Journalism School on the state of the media in South Africa. I will also be involved in putting the finishing touches to my book, The Fight for Democracy: The ANC and media in South Africa. It is published by Wits University Press and will be out later this year. I say goodbye to my advocacy co-ordinator job on April 30 with mixed feelings. After all, there were a few great aspects: I was back at the M&G where I started my career as a journalist more than two decades ago (I love this paper, it definitely showcases the best journalism, especially investigations and analyses, in the country); I enjoyed writing comment pieces on the secrecy Bill; and finally, my engagement in media freedom and access to information activism was great.

As for Paia and the information officer performance, say no more. Maybe except for just one word: Eish.

Source: By Glenda Daniels: Mail & Guardian

Madonsela's solution

Public Protector Thuli Madonsela posed an unnerving question about corruption at the 13th International Winelands Conference in Stellenbosch yesterday. "Have we as a society improved? Are we still sick or have we grown sicker?"

Madonsela's question arose from an address by former president Nelson Mandela at the opening of parliament in 1999. Mandela labelled corruption a sickness. "Our hope for the future deeply depends also on our resolution as a nation in dealing with the scourge of corruption. Success will require an acceptance that, in many respects, we are a sick society," Mandela said at the time.

Madonsela said there are leaders in the public and private sectors who have the best interests at heart of the people who entrusted them with power and work daily to make the constitutional dream a reality. "But there are dream stealers or thieves, chief of which is the scourge or sickness of corruption," Madonsela said. She said while Mandela likened corruption to a sickness, others called it a cancer. As a nation, she said, we should empower ourselves to deal with the cancer afflicting our body by isolating it and do "all we can to get rid of it with a view to saving ourselves from death or disability".

Madonsela said she had been asked what it would take to end corruption. She came up with a three-step solution.

Accountablility

The first, she said, was strengthening public accountability. Society should be empowered to ask more questions and know how the government works. Should service or conduct fail, they would know what questions to ask, of whom and which channels to follow.

"We need people who have been entrusted with public power to understand that this is not your power, you are a trustee. When people ask you questions - even if they go to the public protector - don't get annoyed. When you have done nothing wrong, what's wrong with telling the people what happened and how you made a bad decision?"

Transparency

Second on her list was strengthening transparency. "When there's openness there is less opportunity to engage in corruption and abuse resources."

Madonsela said whistleblowers should be protected and laws put in place to do just that. Media freedom was another key aspect to ensuring transparency.

End impunity

Madonsela said the last step is ending impunity. There should not be "protected people or holy cows. Ultimately we need selfless, committed and unwavering leadership in the area of combating corruption and promoting good governance. That is what President Mandela was calling for."

National Security Secrecy and Surveillance: Defending the Public's Right to Know

The scale of government secrecy and surveillance has surpassed all previous boundaries—especially in the national security arena, where the budgets, size and scope of intelligence agencies have ballooned since 9/11. Unprecedented secrecy is largely evading traditional oversight mechanisms, leaving policy makers, the media, and the public in the dark.

What impact are secret governmental operations having on our democratic processes, and are the decisions that are being made behind closed doors helping or harming our national security? What tools are available to penetrate this secrecy, foster a new culture of government accountability, and impose enforceable constraints on intrusive surveillance of innocent Americans?

These questions will be explored by a distinguished panel consisting of high-profile government whistleblowers, key plaintiffs and litigators from headline Freedom of Information Act cases, and expert journalists who have followed the evolution of the national security state for years. Each will offer insights informed by their own direct encounters with national security secrecy and surveillance.

Source: Open Society Foundations

Democratic Left statement on ANC-SACP pro-Secrecy Bill march

PRESS STATEMENT: RESPONSE TO ANC-SACP-SANCO MARCH IN SUPPORT OF THE SECRECY BILL (THE PROTECTION OF STATE INFORMATION BILL)

The Democratic Left Front (DLF) condemns the ANC, SACP and SANCO for organising a anti-democratic march for today in Cape Town in support of the anti-democratic Secrecy Bill (the Protection of State Information Bill). Despite the fury of the anti-imperialist and revolutionary rhetoric used to justify this march, no democrat of any conviction in South Africa can stand silent whilst the ANC, SACP and SANCO threaten to use their mass power to trample on basic democratic rights to information. This march is the first warning shot in the use of the mass activist base of these organisations as storm-troopers for the authoritarian ruling elite. If ever there was ever a classic example of the extent to which the ANC and the SACP represent authoritarian populism, this march is it. This is typical of Stalinist propaganda that was used by anti-democratic regimes in the past. Today, the ANC and the SACP have created false bogeys of liberals, foreign infiltrators and aggressors, and espionage in order to clamp down on social dissent given their collective failure to transform capitalist South Africa.

The DLF stands unreservedly in full and firm support of the Right to Know Campaign (R2K), COSATU, the SA Human Rights Commission and other progressive organisations in South Africa who remain opposed to the Secrecy Bill. The DLF rejects the spurious allegations made by the ANC, SACP and SANCO in their statement announcing today’s march. The DLF fully endorses the R2K statement issued in response to the ANC-SACP-SANCO statement. The R2K is not dominated by foreign-sponsored NGOs and western-owned media agencies. The R2K is not misleading the public about the class orientation of the media. In fact, the R2K has not only opposed the Secrecy Bill but has also argued and mobilised for truly democratised and diversified media, something which the ANC government has failed to facilitate through the statutory Media Development and Diversity Agency. For all these reasons, the DLF reaffirms its endorsement of the R2K campaign.

The intention of the Secrecy Bill is to stifle the spaces that do exist for access to information and critically informed citizens. The Secrecy Bill is not fundamentally about protection information that threatens the security of ordinary working class South Africans, but about protecting spaces for the ruling elite to continue their plunder of the state. While recent concessions by the ANC have improved the Bill, it will still be extremely difficult, if not impossible to ensure transparency of the most shadowy of all state structures, the security cluster. The grounds for classification of documents, and the definition of national security, still remain overbroad, and will lead to documents that are of considerable public interest and importance being declared secret. The Bill also lacks an adequate public interest/public domain defence in case people come into possession of classified documents, or if they are released into the public domain. This has serious implications for activists, who may come into possession of classified documents exposing abuses of power.

The Secrecy Bill is merely symptoms of a much bigger problem. Jacob Zuma’s ruling elite, which was brought to power by the ANC’s Polokwane conference, is enhancing the coercive capacities of the state, and in the process centralising power in an increasingly unaccountable security cluster. The re-militarisation of the police, which has intensified state violence against protestors, attempts to drive unions out of the military, and the lockdown on transparency and accountability in the Ministry of Defence are also signs of the growing power of Zuma’s securocrats. The DLF fears that unless the growing power of the security cluster is checked, then South Africa may be well on its way to a national security state, which likely to contain growing dissent against service delivery and the capitalist system itself through repression.

Source: Constitutionally Speaking

'Secrecy bill' united many in defence of Freedom

On March 17 an extraordinary thing in our remarkable politics occurred in Khayelitsha, Western Cape: 11 opposition political parties took to the stage in a visible show of solidarity against the Protection of Information Bill. They did so because of the ANC government's refusal to include a most necessary public interest defence clause in the bill.

As momentous as this solidarity was, the real high point was the readiness of the people in the audience, from different political parties, to collectively own leaders such as Robert Sobukwe, Steve Biko, Nelson Mandela, Mangosuthu Buthelezi and Helen Zille, among others. Important living and deceased leaders, for once, became common property associated with the common good.

The trivialisation of politics through a territorial, factional or racial attitude was overcome by people seeing the larger canvas. How exhilarating it was to leave the confining boxes and for once be free in the greater expanse of open political space. Here, for the first time, South Africans were willing to accord the kind of reverence to all leaders of the kind that the PAC exclusively gives to Sobukwe, Azapo to Biko, the IFP to Buthelezi and the DA to Zille. All distinguished leaders committed to democracy, the existential struggle of the people and to unadulterated freedom were acknowledged and given recognition.

The forging of a national spirit and willingness of the assembled politicians and supporters to accept the great leaders of our democracy, not in the division of segmented parties where they exist or existed but in the unity of a common matrix of freedom, is a turning point in our glorious history and augurs well for the preservation of our democracy.

May the light of freedom never dim in our country and may moral courage glow bright to show us the way to a safe and secure future. What the leaders and their parties did in Khayelitsha will reverberate through history.

Source: Times Live

Bizos: Secrecy Bill 'threatens values' of Constitution

Veteran human rights lawyer George Bizos argued in a submission to Parliament that the Protection of State Information Bill is unconstitutional on several counts. "The current draft of the Bill, as it stands, runs contrary to and indeed threatens many of the fundamental values and principles enshrined in the Constitution," he wrote.

Bizos, from the Legal Resources Centre's constitutional litigation unit, prepared the submission on behalf of human rights organisation Passop. It is one of 293 written presentations sent to the National Council of Provinces' ad hoc committee processing the Bill after it was passed by the National Assembly last year amid a public outcry. Nelson Mandela's former defence lawyer enumerated seven flaws in the Bill, starting with the absence of a public interest defence. "We view a public interest defence as imperative. Such a defence would exempt from prosecution certain individuals in limited and appropriate circumstances where the disclosure has been made in public interest."

In Bizos's view, the Bill would undermine the provisions of the Promotion of Access to Information Act (Paia) of 2000 and its status as the supreme law giving effect to section 32 of the Constitution, in which citizens' right to access to information held by the state is enshrined. Paia makes disclosure in the public interest mandatory in cases where the information would reveal the commission of a crime, or the existence of imminent public safety risk or environmental risk. Section five of Paia also states that it applies to the exclusion of any act that restricts disclosure or is materially inconsistent with its provisions. Yet, the Protection of State Information Bill in section 1(4) explicitly states that "despite" section five of Paia, it trumps any other law relating to classified information.

Bizos wrote: "Any proposed legislation that seeks to displace the clear provisions of Paia also violates section 32 of the Constitution and is thus unconstitutional. "The Bill's attempt to trump Paia, a constitutionally-mandated statute, is a further indication of the Bill's overall unconstitutionality." He notes that those who defend the absence of a public interest defence have argued that such a clause was unnecessary because the Bill criminalises wrongful classification.

The argument is wrong, Bizos said, because the draft law does not allow those prosecuted for disclosing state information to argue in defence that it was wrongly classified to begin with. "This further ignores the practical reality that improperly classified information will be difficult, if not impossible, to detect and challenge without the efforts of investigative journalists and whistleblowers who will be hamstrung in their ability to bring these illegal classifications to light if they fear lengthy jail terms."

Constitutional law expert Pierre de Vos said he agreed with Bizos because the Bill was drafted in such a manner as to criminalise disclosure of classified information, regardless of whether the classification was lawful. Bizos also faulted the Bill for allowing the minister of state security to confer the power to classify information on other ministers. This usurps the principle of accountability enshrined in section one of the Constitution because it removes the oversight of a particular function from Parliament, and places it with the delegating minister. He went on to say that the legislation runs counter to criminal law by basing liability not on the accused's intention, but on the far lower standard of proof that he or she "ought to have known" they were disclosing a secret.

Bizos also said that imposing prison sentences of up to 25 years for the offences in the Bill is excessive and that the Classification Review Panel it seeks to establish will not be seen as independent or impartial. This was because a member of the panel could be removed by a majority vote in the National Assembly, raising a reasonable suspicion of political bias.

Finally, he said the Bill flouts the constitutionally-mandated Promotion of Just Administration Act by potentially ousting the jurisdiction of the high court to review classification -- which is an administrative act.

The submissions include a 20-page letter from public protector Thuli Madonsela, who warned that it jeopardises freedom of expression and her ability to do her job by preventing journalists and whistleblowers from reporting abuses.

The Congress of South African Trade Unions (Cosatu), in its contribution, calls for the inclusion of a public interest defence and foresaw the Bill would "worryingly" have the effect of "entrenching authority through a security state". Cosatu has, along with rights groups, media houses and opposition parties, threatened to challenge the Bill in the Constitutional Court if it is signed into law in its current form.

The ad hoc committee will meet on Wednesday to schedule further hearings on the Bill.

Source: Mail & Guardian

Britain’s Debate over National Security and the Public’s Right to Know

In February 2009, the U.S. government transferred British resident Binyam Mohamed from the U.S. naval base at Guantánamo Bay home to the United Kingdom. A victim of extraordinary rendition, Mohamed had been imprisoned for seven years—held in Pakistan, Morocco and Afghanistan before his transfer to Guantánamo. After his release, Mohamed took legal action against the British government. He asserted that he had been subjected to cruel, inhuman and degrading treatment during his detention.
 
Other British residents held in Guantánamo, including Bisher al-Rawi, have likewise challenged their prolonged and abusive detention and interrogations. Their allegations implicated British intelligence in their interrogations and abuse. Mohamed, for instance, asserted that MI5 provided questions to foreign interrogators to facilitate his interrogations. He and other former detainees sought information from the British government regarding British complicity in their alleged torture.

At every turn, British intelligence challenged the efforts of former detainees, and the public, to shine the light on the abuse and British complicity in it. The government even took the extraordinary step of trying to litigate under “closed material procedures” the civil cases challenging the British government for its role in their abuse. A closed material procedure prevents the public and even the parties and their attorneys from having access to evidence, instead providing sensitive “closed” bundles of evidence only to “special advocates,” and to the court where appropriate. The closed material procedure does not take into account the public interest in disclosure, and information is known to the government lawyers, but not to the plaintiff or the plaintiff's lawyers.

The British Parliament has statutorily authorized the closed material procedure in only select categories of cases, and not in most civil cases. British courts have curtailed efforts by British state intelligence agencies to keep evidence of abuse secret. In July 2011, the UK Supreme Court rejected the use of the closed material procedure for civil litigation brought by the former detainees challenging their abuse. The Supreme Court unanimously ruled that it could not depart from the fundamental rules of a common law trial, including open justice—the public conduct of trials and release of judgments—as well as the right of a litigant to confront witnesses and know the evidence held by the government pertinent to his claims.

Rather than litigate the underlying issue of its complicity in the abuse of the British former Guantánamo detainees, the British government settled these civil cases. Yet the story is far from over. In October 2011, the Secretary of State for Justice presented to Parliament a Justice and Security Green Paper proposing a significant expansion of the use of the closed material procedure to “whenever necessary in civil proceedings,” as well as of special advocates, and limiting the categories of cases where a party is entitled to even a summary of the main intelligence documents. The British Parliament is currently considering these proposed modifications to limit access to intelligence information in civil proceedings. These are the wrong messages to draw from the Guantánamo civil cases.

Parliament should reject the Secretary of State’s proposals. Expanding the use of closed material procedures would shift the pendulum too far in the direction of secrecy, for alleged victims of abuse and for the public. In the Supreme Court opinion, Lord Dyson, writing for a majority of the Court’s judges, highlighted the 2010 report by the UK Parliament Joint Committee on Human Rights reviewing the first five years of the operation of the Special Advocates process. In its report, the Committee referenced the notorious Star Chamber—the seventeenth century English court with sessions held in secret and without appeal, and now symbolic of the dangers of a wayward, secretive and illegitimate judicial system unaccountable to the public or the rule of law.

The Parliamentary Joint Committee concluded that the use of special advocates “is a process which is not just offensive to the basic principles of adversarial justice in which lawyers are steeped, but it is very much against the basic notions of fair play as the lay public would understand them.” Other limitations on open judicial processes undermine the central role of open judicial review in democratic accountability. This remains true even and especially when national security is involved.

Where should a democratic society draw the line between what may legitimately be kept secret, and what should be open to litigants and the public? Freedom of information advocates, including the Open Society Justice Initiative and other partners, have drawn up the new Draft Principles on National Security and the Right to Information that could help legislative and regulatory drafters set the balance in a transparent and appropriate manner. These principles provide that certain categories of information are subject to presumptive disclosure, including information concerning treatment and interrogation of detainees, violations of human rights and international humanitarian law, arms sales, and corruption. Further, national security concerns cannot justify undermining the fundamental right of the public to have access to judicial processes, or the rights of victims of torture and other human rights abuses to seek a remedy.

A person credibly asserting that the government committed abuse should be entitled to challenge the government in court, and have access to information material to the case. Importantly the public, and not solely the parties, should have the right to contest restrictions to access, with meaningful and transparent judicial oversight.

In its Green Paper, the Secretary of State complains that the settlement of civil cases with former prisoners undermines the reputation of the intelligence services and leaves important questions unanswered. Yet the solution is not greater secrecy but more light. Litigation has been central to achieving some measure of accountability for national security overreaching, and to public disclosure of information concerning government abuses of power. It is litigation which has begun to uncover the role of the British government in the treatment of detainees at Guantánamo and in a secret web of prisons around the world—and to provide some measure of relief.

Allowing litigation to proceed only under a cloak of secrecy does a disservice to the litigants, but also to the public and the rule of law.

Source: Open Society Foundation

Fraud unravels everything

The famous words of Lord Denning: "fraud unravels everything" may be applicable to the situation which has arisen as a consequence of the investigation of the South African Police Services (SAPS) headquarters leases in Pretoria and Durban by the Office of the Public Protector.

According to press reports, the Minister of Public Works has received a letter of demand from the putative landlord, Roux Shabangu, who in turn is facing demands from Nedbank, the financier of the two invalid and unlawful deals in terms of which the SAPS headquarters were to be moved to buildings acquired by Shabangu's company Roux Property Fund (RPF).

As both deals were for procurement on behalf of the state, it was incumbent upon the parties involved to ensure that the procurement was effected in accordance with a system that is fair, equitable, transparent, competitive and cost effective. This is a constitutional requirement that is reinforced by the provisions of the Public Finance Management Act.

Nedbank and Shabangu should be aware of the legal and constitutional environment in which they do business. The consequence of conduct inconsistent with the Constitution is that such conduct (the conclusion of the two leases in this case) is invalid. The invalidity of the leases leaves both Shabangu and Nedbank without any legal recourse against the Minister or any other organ of state.

This is as it should be: the flouting of the requirements for proper tendering can not be rewarded with claims for damages, irrespective of the greed for profit of those involved. It is impossible to found a good cause of action in a moral swamp, or as AP Herbert put it: "a dirty dog gets no dinner from the courts". The mere invalidity of the leases, as determined by the OPP, excuses the taxpayer from having to compensate either the bank or the property developer involved in the negotiations outside the framework of the law and the criteria of the Constitution.

The "elephant in the room" in the SAPS HQ case is the astronomical rentals agreed in the putative leases. The willingness of the state to pay more than three times the going rate in rental for the two buildings in question has not been explained by any of the parties involved. The Public Protector herself, rather charitably, speculates that this could be due to incompetence, negligence, or even recklessness. It could also be due to fraud and corruption. No one knows because, in an ongoing display of lack of accountability, none of the players involved in the deals has explained their conduct or justified the decision to pay rental out of all proportion to the market value of the premises chosen. In the case of the Durban lease there is also the question of the dilapidated state of the building in question, and the obligation of the state to pay for its renovation to render it fit for habitation by SAPS personnel deployed at head office level.

It is reported that Nedbank is demanding to be repaid its loans to RPF. Shabangu's response has been to start legal proceedings to recoup R 1 billion from the Minister. She is blamed for reinstating the leases upon taking office, despite two opinions from senior counsel to the effect that they were unlawfully concluded. This purported act of reinstatement is legally ineffective. If the leases could not pass constitutional muster because they were not fair, equitable, transparently negotiated, competitively priced and cost effectively concluded; their alleged reinstatement can not magically render them valid. They are and remain invalid for want of compliance with the requirements of section 217 of the Constitution, as the OPP has found, thereby confirming the opinions of the two senior counsel whose advice was sought.

The officials in Nedbank who agreed to lend the necessary finance to Shabangu owe their management, and Nedbank's shareholders, an explanation for getting involved in the deal. It is the equivalent of paying R1250 for a tank of petrol at a particular pump when all other pumps are supplying petrol at R400 per tank. It reeks of impropriety.

Taxpayers can feel lucky that Shabangu rejected a settlement offer of R50 million which he says was made last year by the Department of Public Works. That offer was worth R50 million more than he is entitled to, and should not be repeated.

The Minister may have many problems around the conclusion of the leases and her own role in purporting to re-instate them, but a successful claim for damages is not one of them.

Paul Hoffman SC
27th July, 2011

Access to Information unpacked

Foundational to the new democratic order in South Africa are the values of accountability, responsiveness and openness as enshrined in the first section of the founding provisions of our state of the art Constitution, according to which we now all aspire to live.

Accountability means that those in positions of power or authority must be able to justify the decisions they take and explain their actions reasonably. To do so properly and to the satisfaction of the persons seeking accountability, it is often necessary to afford access to materials and information in them that back up the justifications and explanations that officialdom furnishes.

Responsiveness has been widely interpreted to mean acting in a way that is conducive to the promotion of fulfilling the needs of ordinary people. The state is obliged to respect, protect, promote and fulfil the rights guaranteed to all in the Bill of Rights which is Chapter Two of the Constitution. These rights to dignity, the achievement of equality and the enjoyment of the various freedoms set out reflect the aspiration of the new order to transcend the injustices of the past and to transform our society into one in which healing occurs and the divisions of the past are replaced by unity in diversity with peace, progress and prosperity.

Openness can be equated with transparency. This requires that the affairs of state should not generally be opaquely conducted behind closed doors and out of the public gaze. Government is exhorted to show what it is doing and tell the public why policy choices are made in any particular way. This is participatory democracy, limitable only in reasonable and justifiable ways.

Among the rights guaranteed to all are the rights to access to information and freedom of expression. These are inter-related.

In the 21st century there are oceans of data available containing seas of information that, when properly analysed provide waves of knowledge of the issues of the day. From the knowledge gleaned from the information available pearls of wisdom can be found to exercise rights responsibly, make choices wisely and exercise opportunities advantageously; all in ways that respect the humane and compassionate ethos of the new order.

To facilitate the implementing of the values highlighted and the exercise of the rights to freedom of expression and access to information, the Promotion of Access to Information Act has been passed, so that those who are stingy or shy with the information in their possession can be compelled to share it with interested parties for the greater good of the nation. Using this Act is a great accountability tool available to all for the cost of a letter.

Paul Hoffman SC
22 February, 2012.

Is the ANC in a decline it cannot reverse?

Songezo Zibi

Sunday Independent

29 January 2012

The centennial celebrations of the African National Congress provide an opportunity to reflect on what the future holds for the organisation. Of course the emotion accompanying the invocation of history, both proud and painful, raises the question of whether it is possible to offer a dispassionate appraisal of the future meaning of the ANC. Yet it is necessary that we do so in order that we may not fall into the folly of overplaying the hand of historical credibility, or succumbing to the cynicism that arises out of the ANC’s long incumbency in government.

While millions of South Africans probably have hundreds of reasons why they accepted wholeheartedly the ANC’s leadership during the struggle and after 1994, there are a few on which there appears to be general agreement. The most central is the extent to which the character and ethos of the ANC was representative of the best aspirations of the broad spectrum of South African society. Both in its policy enunciations and in the exemplary behaviour of its leaders and members, South Africans saw in the ANC a representation of their highest ideals. As part of our reflection, we have to ponder whether this still holds true.

Character relates to behaviour, effectively leading by example. Leadership by its nature triggers both careful and casual observation of the behaviour of leaders within and outside their official context. That is why it matters a lot to church congregants whether their Pastor is also a hard drinking, womaniser. Equally, it matters greatly to the general community whether the behaviour of the said church’s congregants is considered enough of a good example for the community to accept the collective leadership of the church on relevant matters. 

How has the ANC described the prevailing character of the organisation? The year 2000 discussion document titled ANC – People’s Movement and Agent for Change, notes the development of a trend in which the ANC’s members see leadership positions in the ANC as a pathway to accessing state power and resources. The document states: “within the ANC, the tendency is developing in which positions in government (and the ANC itself) are seen as platforms for acquiring resources and power, and divisions based on this perspective of self-enrichment can be bitter”.

A decade later, the NGC discussion document Tasks of organisation-building and renewal describes the “current situation” in the ANC, which on the face of it, and considering what was outlined in the earlier Through the eye of the needle, appears to indicate progressive degeneration. “And yet, lack of discipline and blatant ill-discipline is becoming a distinct feature of the current situation. Inconsistency in application of rules and reluctance to act against ill-disciplined elements is rife. The leadership is often afraid to take action if this will threaten the prospects of re-election. The culture of our movement is being eroded at a frightening pace.”

In Leadership renewal, discipline and organisational culture, there is a longer list of behaviours considered rife and an antithesis of what the ANC historically stood for. In part the document says: “Since Polokwane (2007, when President Zuma took over), a number of these tendencies have become embedded (my emphasis) and in fact worsened especially as part of the lobbying process.” It goes on to list among others an inability to conduct ANC meetings in an orderly manner, abuse of methods and symbols of the struggle and indecisive leadership. It further states that these and many other stated practices have become a “shadow culture which coexists alongside what the ANC has always stood for”, and that old and new members and leaders are involved.

Given these self-assessments, and the seeming degenerative trend they project, is it still credible to insist that the ANC’s ideals are a reflection of its current character? Does an aspirational goal constitute present reality? Does this not suggest that the character of organisations is separate from the vices of the men who populate and lead them? These questions are critical towards assessing not only the true character of the ANC as it currently exists, but its possibility to lead society in the future.

The question that arises as a result of this is whether the ANC as characterised by the example set by its members and leaders represents the best aspirations of the South African people. We know that in successive elections, the people have voted the ANC overwhelmingly into power. But does this mean the character of the current ANC is reflective of the aspirations of the South African people?

Some have claimed that the ANC is in decline, including its own leaders. Gauteng provincial secretary, David Makhura recently stated that “the ANC is a patient, and it is very sick” in an assessment of the state of the party. COSATU leader Zwelinzima Vavi has used even more startling language, describing an organisation populated by proverbial hyenas and greedy elites. Others like political scientist, Dr Mzukisi Qobo have stated that it is already dead.

But what do scholars and experts tell us about organisational decline and eventual descent into oblivion? Jim Collins in his lesser celebrated but profound book, How the mighty fall, describes the typical steps into oblivion which are: arrogance born of success, undisciplined pursuit of more, denial of risk or peril, grasping for salvation and succumbing to irrelevance or death. Of these, the ANC, even with its receding intellectual depth, cannot be accused of absolute denial of risk. It has repeatedly announced bold initiatives to turn the decline around. A more pertinent question is whether the measures it purported to put in place have been successful. The increasingly desperate tone of these assessments appears to suggest decisive failure.

But why is it not succeeding? It could be because it has chosen a path of organisational involution. Xiaobo Lu in Cadres and Corruption describes involution thus: “Organisational involution takes place when a ruling party, in dealing with change of environment, opts to retain existing modes and ethos rather than adopt new ones.” He further goes on to explain why symptoms of organisational sickness become difficult to cure under involutionary conditions: “new rules and procedures are often turned into something familiar that bears the imprint of yesteryear.”

What Xiaobo Lu describes can be seen in the ANC. For instance it continues to believe, naively, in the inherent integrity of its members and leaders on the basis of what they swore to when they joined the organisation. This has led to its complete ill-preparedness for the dangers of unchecked ambition and lust for power. The other is the insistence on allowing anyone, no matter how ill-prepared, to run for high office on the basis of making the biggest hollow promises to branches. In a world of crises caused by high finance and complicated economics, any election without minimum qualification standards is outright foolish.

We must therefore ask whether the current state of the ANC as described by itself makes it ready to lead for the next 100 years. We must also question the assertion common among some in its ranks that because it has faced numerous challenges in the past and managed to overcome them, this necessarily suggests it shall again prevail.

Dispassionate examination should show us that the ANC’s ability to overcome serious debilitation was anchored in the intellectual and ethical strength of the leaders it had the consciousness to elect. In addition, in all those instances the ANC did not have to grapple with the challenges of holding state power and having access to vast fiscal and institutional resources. Renewal does not somehow occur. It is the outcome of hard work founded on ethical and moral ethical application and standards of leaders and members of an organisation.

Is the ANC in decline? In addition to the challenges it has already identified, there are others it appears paralysed to talk or do anything which relate to questionable personal behaviour some of its senior leaders because decisive action could cause further divisions. It is simply mind-boggling that the custodian of the finances of the Northern Cape, MEC John Block, retains his job while facing criminal charges of swindling the very State he swore to protect. In KwaZulu Natal, House Speaker Peggy Nkonyeni and MEC Mike Mabuyakhulu will go on trial in October for corruption against the State, yet they retain their positions as if nothing is wrong.

Suggestions seen so far have included the “screening” of new members, but this is fatally flawed. Many wonder how high up this screening would go and how thoroughly it would be applied. Would it for instance include senior leaders whose family members and friends appear to suddenly have found entrepreneurial flair they didn’t have before these leaders occupied high offices in government? Clearly Block, Nkonyeni and Mabuyakhulu among others would fall foul of this screening if found guilty by the courts.

Jim Collins in How the mighty fall says “the path out of darkness begins with those exasperatingly persistent individuals who are constitutionally incapable of capitulation…. Be willing to kill failed ideas (sic), even to shutter big operations you’ve been in for a long time. Be willing to evolve into an entirely different portfolio of activities, even to the point of zero overlap with what you do today, but never give up on the principles that define your culture.” It takes no rocket scientist to realise that any solutions would have to work around the ethical and moral “sensitivities” surrounding some leaders, literally making the whole effort an abortion from the start. Rank and file members would wonder why the new rules apply to some and not others.

Unless it notches up some notable successes with its efforts at renewal, it cannot hope to lead for another 100 years while in perpetual decline. If the erosion of the ANC’s essence continues at this “frightening pace”, a tipping point might be near, which would almost certainly lead to the death of an organisation clearly hobbled by problems it is incapable of solving. That decline means its character increasingly bears little connection with the highest aspirations of South Africans. If that connection reaches its weakest, the ANC will be effectively dead, for no society wants leaders it cannot identify with.

Songezo Zibi is a member of the Midrand Group. A version of this article appeared in the Sunday Independent earlier today.

Source:  Midrand Group